Can I Be Arrested for DWI If I’m Not Driving?

A first-time DWI offense in Texas is normally a Class B misdemeanor punishable by up to 180 days in jail, a $2,000 fine, or both. Keep in mind, the legal standard for DWI is that a person is found “operating” a motor vehicle while under the influence. And while you might think “operating” means “actually driving,” the reality is a bit more complicated than that.

Overview of a Non-Moving DWI Arrest

Court: Defendant’s Admissions, Passenger’s Conflicting Testimony, Enough to Establish Defendant “Operated” Vehicle Drunk

A recent decision from the Texas Seventh District Court of Appeals, Lehnert v. State, offers a cautionary example of what we are talking about. This case began when a man driving down the highway one night observed a pickup truck “driving erratically.” The man decided to call 911 to report the truck.

Shortly thereafter, a Texas Department of Public Safety trooper responded to the 911 dispatch. The trooper found a truck matching the caller’s description parked on the side of the road. The trooper saw another man–the defendant in this case–relieving himself behind the truck. After completing his business, the defendant used his fob to activate the truck’s lights and start the engine.

At this point, the trooper initiated a conversation with the defendant. The defendant was not in his truck or driving. Instead, he went into the trooper’s vehicle, where he answered some questions. The trooper, smelling alcohol on the defendant’s breath, proceeded to conduct some field sobriety tests, which ended in the defendant’s arrest for DWI.

A jury later found the defendant guilty of DWI and sentenced him to the maximum penalties of 180 days in jail and a $2,000 fine. On appeal, the defendant argued there was insufficient evidence to support his conviction. More precisely, the defendant said that while he was admittedly intoxicated when the trooper approached him, there was no proof he was actually “operating” a vehicle at the time.

The Seventh District disagreed with this reasoning and affirmed the defendant’s conviction and sentence. First, the defendant voluntarily told the trooper he had been “driving from Lubbock” when he stopped to relieve himself. Second, the defendant’s fiancée, who was a passenger at the time, also told the trooper the defendant had been driving.

Although the fiancée testified at trial that she had actually been driving–and moved to the passenger seat because she was also drinking and did not want to be charged with DWI–the appeals court said the jury was free to believe the trooper’s account of what happened. Given the “totality of the circumstances,” the Seventh District said the jury could reasonably conclude the defendant was “operating” a vehicle while intoxicated.

Charged with a DWI Offense in Houston?

Call Tad A. Nelson, Experienced DWI Lawyer Today!

The most important thing you can do when stopped by a police officer on suspicion of DWI is to say nothing. Any voluntary statement you make will be used against you as evidence in court. The best thing you can do is remain silent and contact an experienced Houston DWI defense lawyer as soon as possible. If you need an experienced criminal justice lawyer to represent you in a DWI case, call Tad at 281-280-0100 today.